Democrats fear the Constitution

27 July 2018

NormanL

If the rhetoric coming from some Democrats is an accurate reflection of their mood, then the party's problems run far deeper than mere infighting between old liberals and younger progressives. Rather, the fight -- or fear -- Democrats seem to have is of the Constitution itself. Some on the right will say this have been a constant on the left since the turn of the 20th century. But the left's ire has turned more aggressive, and their solutions more destructive:

With the likelihood of a Supreme Court majority as conservative as any since the mid-1930s, some on the left have taken to suggesting some far-reaching—or overreaching notions. Why not wait until a Democratic president and a Democratic Senate take power, and then, for example, pack the court with a few more liberal justices? Or solve that pesky Senate problem by granting statehood to Puerto Rico and the District of Columbia? Some have even suggested breaking up California into multiple states to add to the left’s senatorial surplus.

Liberals weren’t always so fearful of the ways that the Constitution protects minority interests from majority rule. For decades, liberals celebrated the power of the Constitution and an unelected Supreme Court to expand civil rights and individual liberties in the face of majority opinion. Voters did not enact nationwide school desegregation, the end of prayer in public schools, sweeping abortion rights, expanded protection for criminal suspects or gay marriage. The federal bench was the go-to venue to win these fights.

If the right now has the power to reshape the federal bench and perhaps reverse some of these decisions, that has come at least in part because of a decadelong failure on the part of Democrats to win at the ballot box.

Fiddling with Senate representation, packing the Supreme Court, breaking up existing states...they may all be suggestions out of the fever swamp. But as we have seen in the past, ideas that seems especially wacky have a way of becoming mainstream thinking on the left (witness the once distant idea of Demcoratic Socialists now becoming a real thing, for example).

While the Constitution makes some of these ideas dead letters (decreasing Senate representation being explicitly prohibited without the consent of the states that would lose seats), others, like an aborted effort to split California into three states, or the long time effort to give DC and Puerto Rico statehood aren't going away. And we are somewhat amused that court packing, the brain child of FDR, is making a comeback.

All of them smack of desperation, and a dangerous willingness to upend whatever barriers stand in their way.